Jesusita Wildfire Update

Trail Gnomes Charged in Jesusita Fire
Misdemeanors Could Mean Fines, Jail Time, and Civil Penalties for Craig Ilenstine and Dana Larsen

Thursday, December 10, 2009
By Ray Ford & Chris Meagher

More than seven months after the Jesusita Fire scorched nearly 9,000 acres of the Santa Barbara front country — destroying 80 homes, damaging another 15, seriously injuring numerous firefighters, and costing $17 million in its wake — two men have been charged in connection with the start of the fire.

On Thursday, the District Attorney’s office filed charges against Craig Ilenstine, 50, and Dana Larsen, 45, who have each been hit with one misdemeanor count of not obtaining a “hot work” permit when they were allegedly doing trail work on May 5, 2009, the day the fire broke out. The D.A.’s press release indicated that the investigation and evidence collected by the fire investigation team showed that Ilenstine and Larsen were using gas-powered weed cutters to trim vegetation along the Jesusita Trail in the area where the fire started at approximately 1:45 p.m. It’s been long speculated that the fire was caused by trail work of this type, which is usually conducted by volunteers who are known colloquially in hiking and mountain biking circles as “trail gnomes.”

The charge is a violation of California Fire Code, Chapter 26, Section 2601, which requires that a permit must first be obtained from the fire marshal for any “welding, cutting, open torches, and other hot work operations and equipment.” To get such a permit, applicants must demonstrate an ability to take precautions to prevent a wildfire, including — but not limited to — having firefighting equipment onsite and monitoring the area for at least 30 minutes after the completion of work to make sure that there is no danger posed by smoldering materials. According to the D.A.’s office, neither man obtained the required work permit, there were no fire extinguishers at the work site, and no one stayed afterwards to check for hot spots.
Senior Deputy District Attorney Jerry Lulejian, who is prosecuting the case, wouldn’t say whether there were other people on the trail at the time. He wouldn’t comment further on any of the facts of the case beyond what was contained in the press release. “I don’t want to talk about the circumstances in any more detail,” he said.

A study by The Independent of GIS parcel maps shows the start of the fire was within the Los Padres Forest but on the edge of land owned by the county and land owned by the La Cumbre Ranch Living Trust. The trail itself is managed by the U.S. Forest Service through this section via an easement that dates back to the 1960s. From the evidence, which included cleared brush and cut weeds and grass, work was being done both on the county and La Cumbre Ranch private holdings and on the trail managed by the Forest Service.

There are concerns in the trail user community as to the charges’ implications. Getting permits for trail work and other trail-related activities is neither a common practice nor one that those who frequently do trail work have historically been expected to know about. Santa Barbara boasts numerous established volunteer organizations that frequently conduct trail improvement projects, including trainings and all-day workshops. According to one such volunteer who’s done 14 years of trail work, this is the first mention of a hot work permit. “None of the local volunteer organizations have ever been informed about, or required to have a hot work permit in the past,” he said.
County Fire spokesman Capt. David Sadecki, whose department oversees county and state lands as it applies to the use of hazardous equipment, said he didn’t know of anyone who has applied for a permit from County Fire for work on the trails in the past. Jurisdiction can be complicated, he said, as trails pass through city, county, federal, and private land. Kerry Kellogg, the wilderness trail manager for the Santa Barbara District of the Los Padres National Forest, said that, to his knowledge, neither man had participated in any prior trail projects in the forest.

Despite community sentiment calling for much harsher charges — especially given the lack of serious prosecution for those thought to be the cause of the November 2008 Tea Fire — the D.A.’s office determined after a lengthy investigation that it would not bring felony charges against the men. That’s due to a “good faith belief” that the D.A. could not “prove beyond a reasonable doubt the required mental state” needed to convict the men of felonies.

What prosecutors do intend to do, however, is seek restitution on behalf of the victims of the Jesusita Fire, a pricetag that’s floating in the millions of dollars, considering the injured firefighters and destroyed homes. “Restitution is a constitutional right for victims of any crime,” Lulejian said. The prosecution will not have to prove during the trial that the alleged crime itself is the causation of the fire, but the connection will have to be made at the sentencing hearing, when the judge will determine whether restitution should be given to victims. Restitution aside, the maximum potential criminal penalty for the misdemeanor is $25,000 fine and 90 days in jail.

The matter will also find its way to civil court, as Cal Fire, the state’s fire department, could pursue civil cost recovery to recoup the costs of fighting the fire, according to spokesman Daniel Berlant. “Cal Fire does have the authority to recover those costs if there was negligence,” he said. Officials at the state level are still determining whether there was a violation of law or negligence, as well as still totaling the amount of costs to the state. There is a lesser burden of proof in civil claims.

Both men have been sent letters requiring that they appear in Santa Barbara Superior Court for arraignment on January 15, 2010. Ilenstine is being represented by attorney Sam Eaton, whose receptionist said the attorney is not taking calls on this matter. A message left with Ilenstine was not returned. A man who answered the phone at the law offices of Larry Powell and Michael Damen — whose attorneys are representing Larsen — said they would be faxing a statement sometime soon. Beyond that, not much is known about the two men charged with crimes, though it appears Ilenstine is a San Marcos High School graduate from 1977, owns a Santa Barbara tile company, and has participated in mountain biking races.
Lulejian — a prosecutor from the D.A.’s North County office — prosecuted the men who started the Zaca Fire in 2007, and noted his experience in fire-related prosecutions as a primary reason he took the Jesusita Fire case. Over the months, various prosecutors have hinted at a potential conflict of interest for many prosecutors in the office, because of the homes affected by the fire. Acting D.A. Joshua Lynn himself had to defend his home from the fire at one point. Lulejian wouldn’t comment on how long the D.A.’s office has been reviewing the facts and evidence of the case, nor on how many prosecutors in the office were involved in the decision.

The D.A.’s office came under scrutiny in its handling of the start of the previous fire to scorch Santa Barbara, the Tea Fire, which damaged or destroyed more than 200 homes. Again citing the need to have proof beyond a reasonable doubt, the D.A. filed misdemeanor charges against the 10 alleged to be responsible for the fire. At the end, the 10 — who were mostly Santa Barbara City College students — pleaded no contest to trespassing and, as part of a plea deal, a charge of having a fire without a permit was dropped. The members of the group received 75 hours of community service and a $500 fine as their sentence.

Meanwhile, the D.A.’s office is currently appealing a Superior Court judge’s decision to not make the men who caused the Zaca Fire in the summer of 2007 pay restitution. Originally charged with five felony counts of recklessly causing a fire with great bodily injury, as well as special allegations of arson with aggravating factors, Jose Cabrera, Santiago Cervantes, and Rancho La Laguna LLC, saw those charges thrown out by Judge Zel Canter, who determined the workers’ actions didn’t amount to recklessness. Instead, the judge explained that federal officials allowed the fire to burn in different directions, so those who started the fire were no longer responsible for what happened. As such, charges against Cervantes and the LLC were dropped, and Cabrera pleaded no contest to a lesser misdemeanor charge and was sentenced to probation and a $200 fine. The D.A.’s office recently filed its brief in this appeal, and the defense will be filing its appeal next month.